(PC) Ellis v. Acob ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN ELLIS, No. 2:21-cv-1632 WBS AC P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 A. ACOB, 15 Defendant. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. By 18 order filed May 4, 2022, the undersigned screened the complaint and found that it did not state a 19 claim for relief. ECF No. 13. Plaintiff was given an opportunity to file an amended complaint 20 and has now filed a first amended complaint. ECF No. 14. 21 I. Statutory Screening of Prisoner Complaints 22 The court is required to screen complaints brought by prisoners seeking relief against “a 23 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). 24 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 25 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 26 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 27 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 1 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 2 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 3 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 4 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 5 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 6 Franklin, 745 F.2d at 1227-28 (citations omitted). 7 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 8 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 9 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 10 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 11 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 12 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 13 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 14 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 15 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 16 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he pleading must contain 17 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 18 cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 19 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 20 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 21 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 22 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 25 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 26 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 27 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 28 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 1 II. First Amended Complaint 2 The allegations in the first amended complaint are nearly identical to those in the original 3 complaint. Plaintiff once again alleges that he is wheelchair-bound and suffers from a number of 4 disabilities, and in December 10, 2020, he was sent to the emergency room where he was 5 diagnosed with COVID-19, pneumonia, a urinary tract infection, and an ulcer. ECF No. 14 at 9. 6 After spending five days at the hospital, plaintiff was returned to the prison, placed in a special 7 treatment room, and told not to leave his bed. Id. at 9-10. On December 24, 2020, plaintiff used 8 his call button to receive pain medication and Acob responded, placed the medication in the food 9 port, and told plaintiff that he could come and get it himself. Id. at 10. Plaintiff told her that he 10 could not walk, but instead of arguing with Acob, he pressed the call button and another nurse 11 came and brought his medication to him. Id. Prior to this incident, Acob had tried to argue with 12 plaintiff about not showering and not taking a food tray. Id. at 9. 13 III. Failure to State a Claim 14 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 15 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 16 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires plaintiff 17 to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition 18 could result in further significant injury or the unnecessary and wanton infliction of pain,’” and 19 (2) “the defendant’s response to the need was deliberately indifferent.” Id. (some internal 20 quotation marks omitted) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)). 21 Deliberate indifference is established only where the defendant subjectively “knows of and 22 disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057 23 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). “If the harm is 24 an ‘isolated exception’ to the defendant’s ‘overall treatment of the prisoner [it] ordinarily 25 militates against a finding of deliberate indifference.’” Jett, 439 F.3d at 1096 (alteration in 26 original) (quoting McGuckin, 974 F.2d at 1060). 27 As in the original complaint, plaintiff has alleged only a single failure to bring his 28 medication to him. Though he may have argued with Acob on two prior occasions, neither of 1 those incidents involved plaintiff’s medical care. This isolated instance of neglect is insufficient 2 to state a claim for deliberate indifference. See O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 3 1990) (repeated failures to satisfy requests for aspirin and antacids to alleviate headaches, nausea, 4 and pain did not violate the Eighth Amendment because “[s]uch isolated occurrences of neglect 5 do not amount to a constitutional violation”)). Furthermore, although Acob did not bring the 6 medication to plaintiff, plaintiff was able to use his call button to call another nurse for assistance, 7 which he did. Accordingly, there was no denial of medication and no injury. 8 IV. No Leave to Amend 9 Leave to amend should be granted if it appears possible that the defects in the complaint 10 could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 11 (9th Cir. 2000) (en banc). However, if, after careful consideration, it is clear that a complaint 12 cannot be cured by amendment, the court may dismiss without leave to amend. Cato v. United 13 States, 70 F.3d 1103, 1105-06 (9th Cir. 1995). 14 The undersigned finds that, as set forth above, the complaint fails to state a claim upon 15 which relief may be granted. Plaintiff has already been given an opportunity to amend the 16 complaint. He was informed of the standards for pleading an Eighth Amendment claim and 17 advised what kind of information he needed to provide. Given that the allegations in the amended 18 complaint are nearly identical to those in the original, it does not appear that plaintiff has any 19 further facts to provide or that further amendment would result in a cognizable claim. As a result, 20 leave to amend would be futile and the complaint should be dismissed without leave to amend. 21 V. Plain Language Summary of this Order for a Pro Se Litigant 22 It is being recommended that your complaint be dismissed without leave to amend 23 because the first amended complaint is nearly identical to the original complaint and neither 24 complaint states a claim for relief. It appears that there are no other facts for you to provide 25 regarding the incident and further leave to amend would not result in a viable claim. 26 Accordingly, IT IS HEREBY RECOMMENDED that the first amended complaint be 27 dismissed without leave to amend for failure to state a claim. 28 These findings and recommendations are submitted to the United States District Judge 1 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 2 || after being served with these findings and recommendations, plaintiff may file written objections 3 || with the court. Such a document should be captioned “Objections to Magistrate Judges Findings 4 | and Recommendations.” Plaintiff is advised that failure to file objections within the specified 5 || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 6 | (Oth Cir. 1991). 7 | DATED: June 2, 2022 Ctlhter— Lane 8 ALLISONCLAIRE. `` 9 UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28